Hyland v Residential Tenancies Board

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Noonan
Judgment Date06 Oct 2017
Neutral Citation[2017] IEHC 557
Docket Number[2017 No. 103 MCA]

[2017] IEHC 557

THE HIGH COURT

Noonan J.

[2017 No. 103 MCA]

BETWEEN
AMY HYLAND
APPELLANT
AND
RESIDENTIAL TENANCIES BOARD
RESPONDENT
AND
LUKE CHARLTON

AND

MICHAEL COTTER
NOTICE PARTIES

Landlord and Tenant – S.123(3) and s. 3(2) (h) of the Residential Tenancies Act, 2004 – Receiver appointed – Child of the Landlord – Tenancy Tribunal – Failure to vacate the premises – Notice of Termination.

Facts: The appellant sought an order pursuant to s. 123(3) of the Residential Tenancies Act, 2004 against a determination of the Tenancy Tribunal of the respondent. The appellant contended that she was the child of the landlord within the meaning of the s.3(2) (h)of the 2004 Act and thus, the 2004 Act did not apply to the appellant. The appellant's second contention was that the Tenancy Tribunal had no jurisdiction to deal with the matter due to infirmity in the registration of the tenancy like the incorrect identity of the landlord and incorrect commencement date of the tenancy.

Mr. Justice Noonan dismissed the application of the appellant. The Court held that the word 'child' was not ambiguous and in its natural and ordinary meaning could only refer to the biological offspring of a natural personal and thus, did not apply to the appellant. The Court noted that the receivers undoubtedly had a sufficient interest in the property to register the tenancy as having been lawfully appointed. The Court held that the factual issue in the present case that the wife of the landlord was a joint landlord in relation to the rented premises could not be challenged in an appeal on a point of law.

JUDGMENT of Mr. Justice Noonan delivered on the 6th day of October, 2017
1

This is an appeal on a point of law brought pursuant to s. 123 (3) of the Residential Tenancies Act, 2004 ('the 2004 Act') against a determination of the Tenancy Tribunal of the respondent (the RTB) made on the 17th February, 2017.

Background Facts
2

The notice parties are bank appointed receivers over a number of properties owned by Denis Scriven, the appellant's stepfather. These properties include a dwelling at 31 Carrigmore Crescent, Saggart, Citywest, Dublin 24. The appellant became the tenant of that property pursuant to an arrangement with Mr. Scriven. The notice parties were appointed by deed on the 4th June, 2014. They subsequently registered the tenancy with the RTB.

3

When they did so, they were not in a position to ascertain the commencement date of the tenancy because neither the appellant nor Mr. Scriven were prepared to cooperate with them. By letter of the 5th June, 2014, the second notice party wrote to the appellant as the occupant of 31 Carrigmore Crescent advising her of the appointment of the receivers and asking her to provide details of the basis upon which she occupied the property. She responded in the following terms by letter of the 24th June, 2014:

'Re: my home at 31 Carrigmore Crescent.

My landlord is Ger Scriven. My rental agreement is with Ger Scriven.

I have been told to call the guards should you or anyone working with you come to my home! Please contact Ger Scriven for anything to do with this property.

Amy (the occupant).'

4

By letter of the 7th July, 2014, from the notice parties' solicitors to the appellant, they called upon her to pay the rent due to the notice parties as being the only persons legally entitled to receive it. In the intervening two years or so, no rent was paid by the appellant to the notice parties and accordingly by letter of the 17th June, 2016, the solicitors for the notice parties called upon the appellant to vacate the premises within 21 days.

5

The appellant failed to do so and accordingly the notice parties served a Notice of Termination on the 17th August, 2016. An application for adjudication in respect of the appellant's overholding was made to the RTB and came on for hearing before an adjudicator on the 9th November, 2016. The appellant did not appear at the hearing and the notice parties were represented by their solicitor. The adjudicator determined that the appellant should vacate the premises within 28 days and pay a sum of €7,540 by way of arrears of rent in instalments. The appellant appealed the adjudicator's determination to the Tenancy Tribunal before which a hearing took place on the 23rd of January, 2017.

6

On that occasion the notice parties' solicitor again attended and the appellant attended and was represented by a Mr. Seery, an engineer. It would appear that Mr. Seery on behalf of the appellant made two points to the Tribunal. The first was that the appellant is a 'child' of the landlord, Mr. Scriven within the meaning of s. 3 (2) (h) of the 2004 Act and accordingly the provisions of the Act did not apply.

7

The second point made by Mr. Seery was that Mr. Scriven's wife, Ms. Samantha Hyland was the appellant's mother and was effectively a joint landlord of the property by virtue of her marriage to Mr. Scriven and the fact that the appellant had paid rent both to her and Mr. Scriven on a periodic basis. It would appear that the appellant stated in evidence that she had taken up occupancy of the premises in mid 2015 and had previously been in occupation in 2014 having left for alternative accommodation before returning. The appellant confirmed that she had written the letter of the 24th June, 2014 acknowledging that Ger Scriven was her landlord.

8

The third point made by Mr. Seery was that the registration of the tenancy by the notice parties was invalid and therefore the Tribunal had no jurisdiction in the matter.

Findings of the Tribunal
9

The Tribunal found that the 2004 Act did apply to the case because the appellant was not a 'child' of the landlord within the meaning of s. 3 (2) (h). It gave its reasons for so finding.

10

Secondly, it found that submissions regarding the registration of the tenancy were not within the remit of the Tribunal as this was a matter between the RTB and the party lodging the dispute. The Tribunal found as a fact that Mr. Scriven was, and at all times remained, the appellant's landlord and in that regard noted the content of her letter of the 24th June, 2014. The Tribunal rejected the appellant's submission that her mother was also her landlord. It noted that in subsequent correspondence between the appellant and the notice parties and their solicitors, it had never been alleged by her that her mother was a joint landlord of the property and that her assertions to the contrary were therefore not credible. Furthermore, neither the appellant nor Mr. Scriven gave evidence in support of the proposition that her mother was a joint landlord.

11

The Tribunal accordingly affirmed the determination of the adjudicator that the notice of termination was valid and that the appellant should vacate within 56 days of the date of issue of the order. The Tribunal also determined that arrears of €8,060 were due and provided for payment by instalments.

The Appeal to the High Court
12

The within notice of motion, issued by the appellant as a litigant in person, merely states that the appellant appeals against the decision and finding of the Tribunal determination. Section 123 of the 2004 Act provides in relation to a determination order that:

'(3) Any of the parties concerned may appeal to the High Court, within the relevant period, from a determination of the Tribunal (as...

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3 cases
  • Kelly v The Residential Tenancies Board
    • Ireland
    • High Court
    • 6 November 2018
    ...whether a notice was invalid. On that basis the decision at first instance was correct. Hyland v. Residential Tenancies Board [2017] IEHC 557 applied. JUDGMENT of Ms. Justice O'Regan delivered on the 6th day of November 2018 Issues Introduction 1 This is an application by Mr. Kelly, the app......
  • A.C. v The Minister for Health and Children
    • Ireland
    • High Court
    • 13 May 2019
    ...drawn between them in a statutory provision has recently been considered by this court in Hyland v. Residential Tenancies Board [2017] IEHC 557, where the meaning of the word “child” for the purposes of the Residential Tenancies Board Act 2004 (the 2004 Act) fell to be considered. The case......
  • X v Minister for Justice & Equality
    • Ireland
    • Supreme Court
    • 9 June 2020
    ...High Court Judge.” 45 Reference was also made to a decision of the High Court in the case of Hyland v. Residential Tenancies Board [2017] IEHC 557 in which the High Court held that the word “child” within the meaning of the Residential Tenancies Act 2004 did not include a stepchild. In that......

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